| Wis. | Feb 24, 1891
The proposition, maintained by counsel for plaintiff, and which covers the whole case, is that, “ in order to carry out the original intention of the parties, the error of description in the mortgage may be corrected so as to embrace the homestead, the husband being dead and the widow consenting thereto; especially as the consideration for the mortgage was the joint indebtedness of the husband and wife.”
The above proposition contains two statements or assumptions of fact which require consideration. One is that the widow of Austin Buddy consents to such reformation. It is true that she does so in her answer, but this is not- an effectual consent. Sec. 2203, E. S., provides that “no mortgage or other alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife to the same.” Hence no valid conveyance of his homestead can be made by a husband unless his wife signs the same. The widow of Austin Buddy has not signed any such conveyance, and her answer admitting that the mortgage in suit ought to be reformed to include the homestead is not equivalent to such signing. Of course, she may now lawfully convey to the plaintiff, or any other person, her interest in the homestead; but such a conveyance would not affect the rights of the children and heirs of Austin Buddy, to whom the reversionary interest therein has descended.
The other fact assumed in the above proposition is that the mortgage was given to secure the joint indebtedness of the husband and wife. The proofs do not sustain this assumption. True, Mrs. Buddy signed the note, to secure which the mortgage was given, with her husband,, but the note was for money and supplies furnished to be used, and which were used, for the support and maintenance-of Austin Buddy-and his family. Such support and maintenance was
The admission of the widow that the plaintiff is entitled to the relief demanded, and the claim that she is liable for the mortgage debt, being thus eliminated from the case, the question for determination is, Can the mortgage be reformed to include the homestead, as the parties to it intended it should, the same having been the homestead of Austin Buddy when the mortgage was executed, and continuously remaining such until he died, and having been the homestead of his widow ever since? On the authority of Petesch v. Hambach, 48 Wis. 443" court="Wis." date_filed="1880-02-24" href="https://app.midpage.ai/document/petesch-v-hambach-6603046?utm_source=webapp" opinion_id="6603046">48 Wis. 443, which is like this case in every essential particular, this question must be answered in the negative. There, as here, an attempt was made by husband and wife to mortgage their homestead, but by mistake the homestead lot was not included in the mortgage. The husband after-wards died, and his widow succeeded to his estate, including such homestead, as heir or devisee. The lot remained the homestead of the parties until the husband’s death, and of the wife from that time until the date of judgment. The fact last stated does not clearly appear in the report of the case, but the record shows that the circuit court so found, and the accuracy of the finding was unchallenged. The relief demanded was the same as that demanded here. The
It is quite true that the decision in Petesch v. Hambach was by an equally divided court, but until overruled it is authority in this court. See Lathrop v. Knapp, 37 Wis. 307" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/lathrop-v-knapp-6601751?utm_source=webapp" opinion_id="6601751">37 Wis. 307. The court has not yet overruled, and is not now prepared to overrule, it. To do so at this late day might divest or disturb property rights acquired on the faith of it. It should be left to the legislature to enact a different rule, if it is deemed desirable to change the rule.
Conrad v. Schwamb, 53 Wis. 372" court="Wis." date_filed="1881-11-03" href="https://app.midpage.ai/document/conrad-v-schwamb-6603620?utm_source=webapp" opinion_id="6603620">53 Wis. 372, is not in conflict with Petesch v. Hambach. In Conrad v. Schwamb, the mistake occurred in a deed which was intended to convey a homestead, but which failed to do so. The purchaser went into possession of the homestead under the deed, and the grantors and their family removed to Minnesota, where the husband died bight years later. The widow and family continued to reside in that state. The propositions decided in that case are accurately stated in a head-note as follows: “ A deed executed by husband and wife which, though otherwise complete, fails through a misdescription to convey the land intended, being the grantors’ homestead, must be treated as an executory contract by the husband to convey, which equity will enforce, after the homestead right ceases against the husband (or against his heirs after his death intestate), though not against his widow.” The controlling difference between these two cases is that in one of them the homestead intended to be mortgaged remained a homestead from the execution of the mortgage until the trial, while in the other the premises permanently ceased to be a homestead on the execution of the deed. Because the homestead character continued in the one case, as it does in this case, reformation of the mortgage was denied, and
For the reasons above suggested, the circuit court properly refused to reform the mortgage, and the judgment must be affirmed.
By the Court.— Judgment affirmed.